Intellectual Property Law, Freedom of Expression, and the Web

Kembrew McLeod, fresh from having trademarked the phrase freedom
of expression®, speeds through the domain name scandals of the
information superhighway.

Intellectual property law is a key variable that helps drive the
so-called "new economy." Without the legal and economic protection
that intellectual property law provides, companies would not have
had the confidence to adopt a new business model in which
intangible, easily reproducible goods and services have become
among the most important things that are sold. Strong intellectual
property protection is extremely important for companies operating
within this new economic landscape, and they do not take kindly to
others who - without authorization - use companies' trademarked,
copyrighted and patented goods (in the case of celebrities, their
images are protected by right of publicity law).

The issues surrounding both the Internet and intellectual
property law are numerous and extremely complicated. In this essay,
I will focus only on the use of intellectual property law by
corporations to restrict freedom of expression.

Trademark law is increasingly being deployed to police how
corporate logos are being used on the Web. This is significant
because trademark law has no formally written "fair use" provision
that is analogous to copyright law. Corporations and the courts
don't view the corporate trademarks that litter our cultural
landscape as culturally rich signifiers that can be used to help
make sense of the world. Instead, they are viewed as private
property first and foremost, and any attempts to use these
trademarks in ways that property owners don't approve can result in
costly lawsuits.

In order for people to comment on, critique, or fawn over the
subject of a site, Web authors reproduce trademarked and
copyrighted images. Although there are numerous websites that
haven't had legal problems, those sites that go beyond simply
promoting a television show, movie or fictional character and which
are critical of their subjects often raise the ire of a corporate
trademark owner. Copyright law is also being used in much the same
way and, despite the "fair use" provision in the law, companies
have been successful in shutting down types of expression they do
not approve of because the cost of litigating a copyright
infringement lawsuit is extremely high. In other words, when faced
with the possibility of a lawsuit, potential infringers often
choose not to risk a costly legal battle and, instead, decide not
to engage in an activity that would bring the wrath of a
corporation with a well-financed legal department.

The Internet is commercially-mediated terrain. As more and more
of our interactions are mediated electronically and cultural texts
are routinely distributed online, we are increasingly exposed to
the policing powers of intellectual property owners. That is, when
we create new cultural texts (and engage in everyday interpersonal
discussions), we often reference existing cultural texts to convey
certain meanings. In doing so, we cannot help but use privately
owned signifiers when engaging in cultural production--signifiers
that are copyrighted and trademarked by very protective corporate
entities who care little for protecting freedom of expression.

My use of the phrase "freedom of expression" has a double
meaning, because I successfully trademarked the phrase. After
developing an academic interest in intellectual property law, I
grew increasingly concerned with the way in which copyright,
trademark and patent laws were being used to gobble up things that
had previously been assumed to be in the public domain.
Pharmaceutical companies, for instance, have patented human genes
associated with diseases and common phrases like "home style" have
been trademarked by the food company Mrs. Smith's, which threatened
to sue Mrs. Bacon (the owner of a small St. Petersburg, Fla.
bakery) for her unauthorized use of the phrase. "Mrs. Smith has a lot of Crust." St. Petersburg Times. December 16, 1994:
18.

As a kind of socially conscious prank, I applied with the U.S.
patent and trademark office to register "freedom of expression" as
a trademark, and in 1998 I received a certificate that stated that
I was the proud owner of the mark. It was registered only under
Class 16 of the international schedule of classes of goods and
services, which covers, generally, "printed matter" and the like.
But even though I can't prevent someone from using the term in
all situations, I can still sue
for the unauthorized use of "freedom of expression" in some contexts - an irony that amuses (and
scares) me to no end.

Regardless of how one feels about the ethics of manipulating the
media, I have found media pranks to be an effective, interesting,
and unconventional ways of engaging in cultural criticism beyond
the limited scope of academia. Employing the services of my old
high school prankster friend Brendan Love, who posed as the
publisher of a fictional punk rock magazine also titled
Freedom of Expression, I started to
lay the groundwork for my plan. To add legitimacy to this potential
news story, I hired Attorney at Law Joan R. Golowich (who did not
know this was a joke) to send a letter ordering Brendan to cease
and desist his use of the phrase. Before I had my first meeting
with Ms. Golowich, my boss at Amherst College Library, Margaret
Groesbeck, declared, in the same words someone else used a few
years earlier, that this lawyer would "laugh me out of her office."
Thankfully, I learned that intellectual property law is entirely
humorless, and after informing Ms. Golowich of my intention to sue
someone for using freedom of expression® without permission and
after she examined my documents, she confidently told me that we
had a case and that she would draft a letter to Mr. Love
immediately.

I made copies of the letter and my trademark certificate and
sent them, along with a press release, to local media. The point of
this particular media prank was to "play it straight" and never let
on to a reporter my intention to engage in social commentary -- I
would let the news story itself do the talking. That is, rather
than someone reading a quote from me stating "I'm concerned with
the way intellectual property law facilitates the appropriation of
significant aspects of our culture by corporations... blah blah
blah," I wanted to orchestrate the story in a way that newspaper
readers would come to that conclusion on their own. I did my best
to sound serious when a woman with a wonderfully rhyming name, Mary
Carey, interviewed me on behalf of the Daily Hampshire Gazette.

The story, which fittingly appeared in the Fourth of July
weekend edition on the local section's front page, was cleverly
titled "Freedom, an Expression of Speech." Carey,
M. "Freedom, an Expression of Speech." Daily Hampshire Gazette. July 4-5, 1998:
9. Carey did a good job of writing a balanced, "objective"
story by interviewing both Brendan and myself, but it was
nonetheless slanted in the direction of highlighting the absurdity
of someone being able to own freedom of expression®. The article
closed with the following poker-faced quote from myself, "I didn't
go to the trouble, the expense, and the time of trademarking
Freedom of Expression just to have someone else come along and
think they can use it whenever they want." Ibid.,
9. This story took some more unusual twists and turns, and for a
full accounting of the tale see the preface to my book,
Owning Culture.
Unfortunately, the Daily Hampshire
Gazette refused to give me permission to reprint the
article.

Distinctions Between Intellectual Property Laws

Copyright, trademark, and patent law protect different types of
cultural expression or information. They have emerged out of
distinct histories, but people tend to use them interchangeably.
For instance, in different parts of the Daily Hampshire Gazette article, the reporter
referred to freedom of expression® as both a trademarked and a
patented good. For her, the newspaper readers, and some readers of
this book, these two terms might mean the same thing, but they are
certainly not. So to alleviate any confusion, I will provide a very
brief overview of patent, copyright and trademark law in the U.S.,
as well as the body of law that protects celebrity images - the
right of publicity.

Copyright Law. Copyright
applies to all types of original expression, including art,
sculpture, literature, music, songs, choreography, crafts, poetry,
flow charts, software, photography, movies, CD-ROMs, video games,
videos and graphic designs. Elias, S.
Patent, Copyright & Trademark: A Desk
Reference to Intellectual Property Law. Berkeley: Nolo
Press, 1996. 66. Copyright only applies to literal
expression, and not the underlying concepts and ideas of that
expression (that is, you cannot copyright an idea). Ibid. The difference between an idea and the
protected expression of that idea highlights the way Enlightenment
and Romantic concepts of originality and authorship are deeply
embedded in contemporary copyright law, a subject I will return to
later.

There is a strong connection between the rise of capitalism, the
invention of the printing press, and the commodification of
literary and artistic domains, and copyright law was the first
piece of legislation to arise from the collision of the
above-mentioned concepts. Bettig, R. V.
Copyrighting Culture: The Political Economy
of Intellectual Property. Boulder: Westview Press,
1996. In 1710, Britain passed the Statute of Anne, which was
akin to modern copyright law, and in 1790 the U.S. Congress passed
a similar law long before most major European countries. This is
not surprising considering the fact that an early draft of the
Declaration of Independence sought to protect life, liberty and
"property" rather than "the pursuit of happiness," as in the
well-known phrase contained in the final draft.

Copyright owners are extremely powerful and have at times flexed
significant lobbying muscle. For instance, until 1998 the period of
copyright protection lasted for the life of the author plus 50
years unless the creator was a business in which case the period of
protection lasted for 75 years. But many of the Walt Disney's most
lucrative character copyrights were due to lapse near the turn of
the century, with (horror of horrors!) Mickey Mouse passing into
the public domain in 2004, and Pluto, Goofy and Donald Duck
following suit in 2009. Chartrand, S. "Patents:
Congress has Extended its Protection for Goofy, Gershwin, and Some
Moguls of the Internet." New York
Times. October 19, 1998: C2. Disney, along with the
Motion Picture Association of America (MPAA), heavily lobbied
Congress to pass legislation to extend copyright coverage for an
extra 20 years, which Congress did. Robb, D.
"Early Disney Cartoons Face loss of Copyright." Denver Rocky Mountain News. January 28, 1998:
1D.

Trademark Law. As a form of
intellectual property law, trademark law developed from a body of
common law that was concerned with protecting commercial marks from
being misused and misrepresented by competing companies. Buskirk, M. "Commodification as Censor: Copyrights and
Fair Use." October, 60 (1992),
82-109. Trademark law is also a federal statute and it grew
out of nineteenth century court decisions surrounding "unfair
competition" business practices. Trademark law is concerned with
how businesses may "identify their products or services in the
marketplace to prevent consumer confusion, and protect the means
they've chosen to identify their products or services against use
by competitors." Elias, S. Patent, Copyright & Trademark: A Desk Reference to
Intellectual Property Law. Berkeley: Nolo Press, 1996.
324.

Among the things that can be trademarked are distinctive words,
phrases, logos and graphic symbols used to identify a product or
service. Examples include MacDonald's golden arches, Prince's
gender-bending squiggle symbol, or Kraft Real Cheese. Trademark law
is not simply limited to protecting symbols, logos, words or names;
it also covers shapes, sounds, smells, numbers and letters. (In
1997, hip-hop star Warren G sued country star Garth Brooks for the
unauthorized use of the lower case letter "g," which he had
trademarked.) Elias, S. Patent, Copyright & Trademark: A Desk Reference to
Intellectual Property Law. Berkeley: Nolo Press, 1996;
McLeod, K. "Warren G and Garth Brooks Battle over Trademark Letter
'g'" [Online]. November 5, 1997. SonicNet. Available at: http://www.addict.com/MNOTW/
hifi/

Patent Law. Patent law
protects from unauthorized commercial use certain types of
inventions registered through the PTO, which grants three types of
patents. The first, utility patents, are granted to useful
inventions that fit into at least one of the following categories:
"a process, a machine, a manufacture, a composition of matter or an
improvement of an existing idea that falls into one of these
categories." Elias, S. Patent, Copyright & Trademark: A Desk Reference to
Intellectual Property Law. Berkeley: Nolo Press, 1996.
187. The second, design patents, "must be innovative,
nonfunctional and part of a functional manufactured article"; a
bottle or flashlight design that doesn't improve functionality
would qualify. Ibid., 187. A plant
patent, the third type, "may be issued for any asexually or
sexually reproducible plants (such as flowers) that are both novel
and nonobvious." Ibid., 187. This last
type of patent covers living matter and is relatively recent, the
product of a 1980 Supreme Court decision that ruled that an
applicant could patent a genetically engineered bacterium.
King, J. & Stabinsky, D. "Patents on Cells,
Genes, and Organisms Undermine the Exchange of Scientific
Knowledge." Chronicle of Higher
Education, 22. February 5, 1999: 7-8. This type of
patent expanded, by the mid-1990s, to include human genes, cell
lines, proteins, genetically engineered tissue, and organisms.
Rifkin, J. "The Biotech Century: Human life as
Intellectual Property." Nation.
April 13, 1998: 11-19.

Right of Publicity Law. The
oddball in this list, right of publicity law, evolved from legal
principles different from copyright, trademark and patent law.
Nevertheless, right of publicity, which protects celebrity images
from being appropriated in a commercial context without permission,
functions in much the same way these other intellectual property
laws do. Like trademark law, it does not have a "fair use"
component written into law, thus making it easier for celebrities
to regulate the contexts in which their images appear. Right of
publicity law descends from right of privacy law, and it came into
existence to meet a particular social and economic need that
developed over the twentieth century. Raymond Williams has argued
that the logic of capitalism necessarily requires previously
untouched areas of cultural activity to be brought into this web of
commodity relations. The transformation of right to privacy, a
nonproprietary law, into right of publicity, a proprietary law, is
an example. Gaines, J. Contested Culture: The Image, the Voice, and the
Law. Chapel Hill: University of North Carolina Press,
1991.

The trademarking of important cultural texts is very significant
because, unlike copyright law, it has no formally written "fair
use" statute. To briefly explain, "fair use" evolved from court
decisions that recognized the fact that absolute control of
copyrighted works would circumscribe creativity and, perhaps more
importantly for elite lawmakers, limit commerce. Buskirk, M. "Commodification as Censor: Copyrights and
Fair Use." October, 60 (1992):
82-109. The "fair use" statute recognizes that, in certain
contexts, aspects of copyrighted works can be legally reproduced,
and it allows for the appropriation of copyrighted works for use
in, for instance, "criticism, comment, news reporting, teaching...
scholarship, or research," according to the 1976 US copyright
statute. Ibid., 91. Fair use may apply to
a variety of other situations not listed above, and in determining
whether a work is fair use, the U.S. Congress outlined the
following four factors:

(1) The purpose and character
of the use, including whether such use is of a commercial nature or
is for nonprofit educational purposes

(2) The nature of the
copyrighted work

(3) The amount and
substantiality of the portion used in relation to the copyrighted
work as a whole

(4) The effect of the use
upon the potential market for or value of the copyrighted work
Elias, S. Patent,
Copyright & Trademark: A Desk Reference to Intellectual Property
Law. Berkeley: Nolo Press, 1996. 169.

The "fair use" statute was written in order to, in part, protect
freedom of expression, but because trademark law has no formally
written "fair use" provision that acknowledges privately owned
images as culturally rich signifiers, it opens citizens up to a
newly emergent form of censorship. I will illustrate this with an
example. As much as some televangelists may have desired it, Jesus
Christ cannot be trademarked. Without any intellectual property
protection for Jesus' image, churches cannot suppress the
presentation of artist Andres Serrano's Piss Christ -- the controversial photograph of a
crucifix submerged in a glass of urine -- in the same way that
Disney can legally enjoin an offensive work of art that
appropriates its trademarked characters. Just as it is impossible
for Christian churches to trademark the image of Jesus Christ, it
is unthinkable that the Bible could be copyrighted. However, the
Church of Scientology - a religion that emerged in the age of
intellectual property law - copyrighted its religious writings, and
it has filed numerous copyright infringement lawsuits throughout
the past few decades to maintain control over the context in which
those writings are presented. Mallia, J. "Inside
the Church of Scientology." Boston
Herald. March 4, 1998: 25.

Intellectual Property Law and the Internet

In recent years, the Internet has been a place where Scientology
dissidents have organized and traded information, and many of the
online critiques that have used Scientology's copyrighted and
trademarked images have prompted intellectual property lawsuits.
"Global Struggle Over Truth and Eternal Life.
South China Morning Post. August 20,
1995: 4. For instance, in 1996 a judge ruled in favor of the
Church of Scientology when a critic of the Church published
copyrighted Scientology writings on the Internet as part of an
ongoing discussion among church dissidents. Giving an example of a
person who wants to engage in a critique of Christian religious
beliefs needing Bible text to work from, one defendant's lawyer
unsuccessfully argued that the use of the copyrighted documents
were necessary to engage with and debate the Church of
Scientology's ideas. "Copyright Law Applies to
Internet; Judge Rules Scientologists Win U. S. Lawsuit."
Toronto Star. January 21, 1996:
A13.

The Church of Scientology has won numerous copyright cases
against those who have critiqued the Church, and its court battles
pertaining to the Internet helped set the first precedents
concerning copyright and cyberspace. Ibid. The Internet is an increasingly significant
venue where individuals can also use celebrity images to help make
meanings and build communities among people with common interests.
It is also a site where celebrities have intervened to shut down
uses of their image they do not approve.

Celebrities are not the only ones who have intervened to shut
down web sites; corporations that produce various cultural texts
(television shows, motion pictures, etc.) have forced fan web sites
to remove copyrighted and trademarked materials. The Fox network
has vehemently protected its intellectual properties, and was one
of the first television networks to pursue legal threats and
actions against infringers in the early days of the Internet. Early
on, they sent cease and desist letters to Simpsons sites and, notably, sites devoted to
the X-Files. This angered many fans
who felt that the success of the fledgling show (created by Chris
Carter) was due in part to the early support and buzz created by
the Internet. Belsie, L. "Web War: Hollywood
Tangles with Fans' On-line Sites." Christian Science Monitor.
December 17, 1996: 1.; "Microfile." Guardian. August 14, 1997: 11.

Many times corporations that want to eliminate unauthorized uses
of their intellectual properties want to control the context in
which their copyrights and trademarks are exhibited, particularly
when shown in an unfavorable context. In other instances, companies
are driven by a simple desire to protect their own investments. A
college student, Gil Trevizo, launched a web site devoted to
another Chris Carter-created show, Millennium, before Fox itself had launched its
official site, which cost $100,000 to create and which the network
planned to debut on the Web the night the show premiered. The
studio balked and sent Trevizo a letter from the legal department
threatening a lawsuit unless all copyrighted and trademarked
materials were removed from the site.

The student, forced to comply with Fox's demands, stated, "They
don't understand an active medium where you have to interact with
people as a community, rather than purely as customers." Belsie, L. "Web War: Hollywood Tangles with Fans' On-line
Sites." Christian Science Monitor.
December 17, 1996: 1. This prompted an e-mail "flame war"
against the studio, with one perceptive fan, Lori Bloomer, arguing,
"If you look at the official sites, they tell you exactly what they
want you to know." Harmon, A. "Web Wars:
Companies Get Tough on Rogues." Los Angeles
Times. November 12, 1996: 1A. She continued, "It is
becoming clear that this is not just a matter of either copyright
or trademark ... but that Fox execs want complete and total control
over how every facet of their company is portrayed on the
Internet." Belsie, L. "Web War: Hollywood
Tangles with Fans' On-line Sites." Christian Science Monitor. December 17, 1996:
1. With the numerous site closings, some site operators
satirized Fox's actions by playing on instantly recognizable lines
from the X-Files: "They're shutting
us down, Scully" and "Free speech is out there." Harmon, A. "Web Wars: Companies Get Tough on Rogues."
Los Angeles Times. November 12,
1996: 1A.

Jill Alofs - the founder of Total Clearance, a firm that
specializes in multimedia and Web site clearances - stated:

An individual fan may create a site and
not think that they are doing anything bad, but that is not
necessarily the case in the eyes of all entertainment companies....
The entertainment companies want to have a sense of control over
their properties, and often these Web sites do not fit in with the
marketing and imaging that companies want to present. Atwood, B. "Oasis in C'right Dispute with Fans' Web
Sites." Billboard. May 24, 1997:
3.

Of course, fan sites are not the only worry of corporations;
even more troublesome is the targeting by IP-owning corporations of
sites that criticize them. Increasingly, companies are using
trademark law to silence criticism because of the law's lack of a
formally defined "fair use" provision. For instance, a former
employee of Kmart, Jim Yagmin, began a "Kmart sucks" site in 1995,
where the teenager painted an unflattering portrait of his former
employer. Neuborne, E. "Vigilantes Stir Firms'
Ire with Cyber-Antics." USA Today.
February 28, 1996: 1A. Yagmin then received a threatening
letter from Kmart's lawyers ordering him to: "(1) Remove the icon
`K' and any appearances of `K' with the likeness of that used by
Kmart, including the red Kmart and the blue and gray Kmart sucks.
(2) Remove the name Kmart from the `title' of any page. (3) At the
bottom of `The Eternal Fear' page remove the lines `Go steal
something from Kmart today, and tell em Punk God sent ya'."
Harmon, A. "Web Wars: Companies Get Tough on
Rogues." Los Angeles Times. November
12, 1996: 1A.

Kmart spokeswoman Mary Lorencz stated: "We monitor the use of
our trademark everywhere, including cyberspace.... We've spent a
great deal of time and money creating a positive image for it, and
it's obviously important to us." Ibid.
Despite the fact that Yagmin replaced the Ks with Xs, the
modification was not enough for his nervous Internet service
provider, which told him the site would have to be removed
completely.

In another example of the way in which intellectual property law
is used ideologically, Zack Exley, a University of
Massachusetts-Amherst graduate student, registered the unclaimed
domain names "gwbush.com," "gwbush.org," and "gbush.org." In 1999,
he set up a satirical web site, a sort of "parallel universe" Bush
campaign site. The same year the Bush campaign sent Exley a letter
threatening to sue him if he continued to use their copyrighted and
trademarked images on his site. He promptly removed the images,
though the content of the site still remained critical of the Bush
campaign. Exley's actions pushed the campaign to buy 260 other
domain names, including the hilariously paranoid registering of
such addresses as "bushsucks.com," "bushsux.com" and
"bushblows.com." Anderson, M. "Bush-Whacker,
Meet Zack Exley: Computer Consultant, Online Satirist, Pain in the
Ass." Valley Advocate. July 1, 1999:
12, 19. (If you type in the domain names bushblows.com,
bushsucks.com or bushbites.com, it sends you directly to the
official Bush-Cheney web site. In fact, many derogatory adjectival
combinations will send you to the campaign's website - try it, it's
a great party trick.)

At the time, Bush could do nothing about Exley's registering of
these domain names, but since then it has become easier for famous
people to secure control of a domain name that mirrors their own
name. In 2000, pop singer Madonna won a case in front of the United
Nations-affiliated World Intellectual Property Organization, in
which she sued a porn site operator to transfer the domain name to
the singer. WIPO's fast-track arbitration system has allowed
corporations, music groups and celebrities to gain control of
domain names that they argue were registered in bad faith. WIPO has
ruled in favor of, for instance, Julia Roberts and Jethro Tull
(which, of course, is not a person, but a band name). "Madonna Wins Domain Name Battle." October 16, 2000.
CNN.com. [Online] Available at:
http://www.cnn.com/2000/TECH/computing/10/16/madonna.cybersquatter.reut/
Among other eyebrow-raising decisions, the panel also ordered the
domain name Corinthians.com, a site devoted to the Bible, to be
transferred to a Brazilian soccer team of the same name. "Cybersquatters: Invading Big Names' Domains." September
25, 2000. CNN.com. [Online]
Available at:
http://www.cnn.com/2000/TECH/computing/09/06/internet.domains/index/html.

By 1999, trademark law had expanded to protect this previously
untouched aspect of the Internet. Friedman, M.
"Lawyers 1, Domain Pirates 0." Canadian
Business. May 28, 1999: 74 Numerous courts have found
in favor of trademark-owning companies in "cyber-squatting cases."
"Cyber-squatters" are those who have registered domain names that
echo the trademarks owned by a company, such as the name
"DonaldFuck.com." Sally M. Abel, International Trademark
Association board of directors member, stated: "Courts as a whole
are bending over backward to respect trademark rights.... [The
courts] appear to have accepted that this is a commercial medium."
Richtel, M. "You Can't Always Judge a Domain by
its Name." New York Times. May 28,
1998: G6. That is, because the Internet is a site of
commercial activity, the conception of trademarks purely as
property should win out over the idea that they are important texts
that can be used to engage in discourse about contemporary
life.

At the end of 1999, trademark-owning corporations won a major
lobbying victory when the U.S. Congress passed the Anti-Cyber
Squatting Consumer Protection Act, which ensures penalties of up to
$100,000 for people who use trademarked names in their domain names
(such as "CokeSucks.com," etc.). "Cyber-Piracy
Bill Passes." San Diego
Union-Tribune. December 11, 1999. Auto Section: 8. In
the wake of the passage of this bill, companies have been
particularly aggressive in pursuing legal action against those who
incorporate their trademarks into domain names.

In 2000, a judge from the Southern District of New York ruled in
favor of Mattel, Inc. in a case involving a porn site that had
registered the name "Barbiesplaypen.com." The judge initiated a
cease-and-desist order, prompting the site to shut down. At the
time of the ruling, a Mattel spokesperson stated that the company
would defend its brand names even when there have been no customer
complaints, and in this case the company stated that it wouldn't
risk having people think that Mattel was involved in a pornographic
site. The Houston-based lawyer Robert Lytle, a legal expert on
cyber-squatting, stated, "The case strengthens the ability of the
mark owner to protect its mark from tarnishment from uses on the
Web." Disabatino, J. "Mattel's Barbie Wins Case
Against Cybersquatters." July 24, 2000: CNN.com. [Online] Available at:
http://www.cnn.com/2000/TECH/computing/07/27/barbie.vs.squatters.idg/index.html.
Similarly, Ford Motors filed a lawsuit against 95 companies and
individuals who violated this law. The 1999 Anti-Cyber Squatting
Act gives trademark owners the sweeping legal power to transfer the
domain names that contain their trademarked name, in virtually any
context. Truby, M. "Automakers Fight
Cyberpirates." Detroit News. May 30,
2000: 1. For instance, a friend and I have begun a somewhat
humorous competitive performance art piece that involves jacking up
our Honda sedans, to transform each boring car into (to use the
slang term) a "hooptie." We immediately decided to register the
domain name "hondahooptie.com" to document our art project, but
then thought better of the idea when I realized we could very well
face a lawsuit or, at the very least, lose the domain name. This is
one anecdotal example (among many) of how the law can intervene to
shut down cultural expression even before it can be shared with
others on a medium like the Internet.

The Privatization of Culture

These recent examples of the privatization of culture are merely
an extension of a trend that has been taking place during the last
thirty years, and which has been accelerating. Herbert Schiller
asserts that, by the late-twentieth century, most symbolic
production and human activity had become immersed in commodity
relations. Schiller, H. The Mind Managers. Boston: Beacon Press, 1973;
Schiller, H. Information and the Crisis
Economy. Norwood, NJ: Ablex Corporation, 1984; Schiller, H.
I.. Culture Inc.: The Corporate Takeover of
Public Expression. New York: Oxford University Press,
1989. "In the 1990s," Schiller writes, "the production,
processing, and dissemination of information have become remarkably
concentrated operations, mostly privately administered." Schiller, H. I. Information
Inequity: The Deepening Social Crisis in America. New York:
Routledge, 1996. 124-5. In addition, there has been a growth
of corporate power primarily resulting from government
deregulation, privatization of once public functions, and the
commercialization of activities that previously were not a part of
the economic sphere. Ibid. Schiller
argues that a "total corporate information-cultural environment" is
spreading throughout the globe, including not just movies and
television shows, but banking and other economic and financial
networks. Ibid. To this extent, by the
mid-1990s, intellectual property accounted for over 20% of world
trade, roughly $240 billion U.S. dollars. Harris, L. E. Digital Property:
Currency of the 21st century. New York: McGraw-Hill,
1998.

R.V. Bettig wrote Copyrighting
Culture as an attempt to extend the line of thinking that
runs through the political economy of communication literature to
the area of intellectual property. Although Bettig discusses the
ideological functions of media ownership to a certain extent,
Copyrighting Culture is first and
foremost an examination of the appropriation and commodification of
information and culture. Intellectual property is significant to
his analysis of media ownership, especially because companies that
control the copyrights of cultural "software" (back catalogs of
music, films, television shows, etc. -- for instance, Disney) are
considered by many investment firms to be extremely lucrative,
perhaps the most profitable companies in the communications market.
Furthermore, ownership of intellectual property significantly
enhances a company's ability to maneuver in the corporate landscape
of culture industries. For instance, Hollywood was able to muscle
its way into the cable television industry because of its massive
holdings of cultural software. Bettig, R V.
Copyrighting Culture: The Political Economy
of Intellectual Property. Boulder: Westview Press,
1996.

Schiller, for his part, focuses on the intensifying push toward
the privatization of as many forms of social activity as possible,
which were brought under corporate control during the latter part
of the twentieth century. Schiller, H. I.
Culture Inc.: The Corporate Takeover of
Public Expression. New York: Oxford University Press,
1989. Sites where culture is produced (public schools) or
made available (public libraries, museums, theaters, etc.) have
been brought under the direct influence of private corporations
that, in turn, influence the form culture takes.

[B]y the close of the twentieth century,
in highly developed market economies at least, most symbolic
production and human creativity have been captured by and subjected
to market relations. Private ownership of the cultural means of
production and the sale of the outputs for profit have been the
customary characteristics. The exceptions - publicly supported
libraries, museums, music - are few, and they are rapidly
disappearing. The last fifty years have seen an acceleration in the
decline of nonmarket-controlled creative work and symbolic output.
At the same time, there has been a huge growth in commercial
production. Ibid, p. 32.

New technologies have facilitated both the growth of culture
industries and the explosion of information-producing sectors. Both
of these areas have been marked by the consolidation of ownership
through mergers and acquisitions.

An example of this is the 1989 merger of Time and Warner
Brothers to create Time-Warner, the subsequent merger of
Time-Warner with Turner Broadcasting in 1996, and America Online's
acquisition of the Time-Warner empire. Bagdikian, B. The Media
Monopoly. Boston: Beacon Press, 1992; Saporito, B. &
Baumohl, B., et al. "Time for Turner." Time. October 21, 1996: 72. As the result
of this consolidation of media corporations, the dominance of a few
firms works to ensure that a more limited range of expression is
communicated. These factors, Schiller maintains, contribute to the
homogenization of culture, shaped to meet the interests of the
corporate parents that own the sites where culture is produced and
the venues where cultural texts are distributed. Schiller, H. I. Culture Inc.: The
Corporate Takeover of Public Expression. New York: Oxford
University Press, 1989.

Public information has been extensively privatized in the
postwar period. This is characterized by the privatization of
governmental information that once was made available largely for
free to the public, the close relationship between universities and
big business (especially in the sciences), and the
commercialization of information in the library field. For
instance, before World War II, there were no large companies
organizing, managing and distributing information, and
information-gathering centered around universities, government
agencies, and public libraries. Government materials were not
considered lucrative and therefore were not copyrighted. But during
the 1950s and 1960s computers facilitated the emergence of
information industries, and recent decades have seen the widespread
privatization of national and governmental information contained in
databases managed by private companies. Ibid.

With the government increasingly contracting out information to
private firms, the primary channels that citizens used to gain
access to this information have been restricted in many ways. For
instance, while Supreme Court, Federal Court and lower court
records are still available for free, companies such as Westlaw
control the intellectual property rights to such information as it
exists in a more accessible form, and charge heavily for access to
it. Records of scientific data and medical studies that had
previously resided in the public domain are very often held by
private companies that have a financial stake in restricting the
flow of that information. Even if that information is readily
available, there is no guarantee it will be organized in a way that
benefits the welfare of the public. Schiller, H.
I. Information Inequity: The Deepening
Social Crisis in America. New York: Routledge,
1996.

Corporations have been extremely resourceful in securing new
areas of culture to inhabit and own, and the National Information
Infrastructure (NII, or as then-Vice President Al Gore called it,
the "Information Superhighway") is a good example. Bettig, R. V. Copyrighting
Culture: The Political Economy of Intellectual Property.
Boulder: Westview Press, 1996. Private corporations led the
charge to build the NII, and have -- with the Reagan, Bush and
Clinton administrations' encouragement -- invested billions of
dollars in telecommunications in the 1980s and 1990s. Schiller, H. I. Information
Inequity: The Deepening Social Crisis in America. New York:
Routledge, 1994. Those who put up the capital for this new
"highway" will get to decide where it's built, who will be
admitted, and what information can flow through it.

Adding to the unabated privatization of public-owned information
resources was the selling off of sections of the radio spectrum to
facilitate the increased activity of communication industries. When
those sections of the radio spectrum were in government hands, at
least there was the possibility
that they might be used in the public interest. But now that these
sections are in the hands of private companies (AT&T and Sprint
secured significant portions for themselves), there are no such
guarantees. Ultimately, a privately owned information system will
contain the key feature of the private industries that came before
it: inequality in the distribution of resources. Ibid.

Unfortunately, intellectual property law, particularly trademark
law, only conceives of these culturally loaded signifiers as
private property and the courts
characterize the use of such trademarks as trespassing. At the same
time that companies have been able to invoke trademark law to gain
control of existing, registered domain names, the number of
remaining domain names are being gobbled up, not so much by
"cyber-squatters" but by the corporations that can purchase
thousands of domain names at a rate that can't even come close to
being matched by private citizens. This, combined with the fact
that corporations actively use intellectual property law to
suppress expressions of dissent, points to a future of higher
fences between the information haves and have-nots. Constraints are
placed upon the use of these privately-owned images by intellectual
property laws, which essentially function as the traffic laws that
are used to police the exchange of cultural expression on the
privatized information superhighways of modern communicative
practice.